What is unauthorized copying?

Unauthorized copying occurs when the exclusive right to reproduce a protected work is violated, which is generally where a copy or phonorecord is made from a protected work without the copyright owner’s permission. Such copying amounts to infringement when two conditions are met: (i) the infringing work was copied from the protected work; and (ii) the two works are “substantially similar.”

In a lawsuit for copyright infringement, there are three ways that the first factor (that the infringing work was copied from the protected work) can be proven. First, it can be proven by direct evidence, such as where an eyewitness saw the copying take place, or where the copier kept a journal noting that he was copying the protected work. Second, the copying can be proven by circumstantial evidence that the copier had access to the protected work and that both works are similar. Finally, copying can be proven by circumstantial evidence that the two works are strikingly similar.

Where copying is proven by one of these methods, the copyright owner must also show that there is a substantial similarity between the works - that the copying amounted to an unlawful copying. The focus here is on how similar the works, and the copyrighted expression of the protected work, are. Differences between the works do not matter, and there can be “substantial similarity” even if only a small portion of the protected work was taken. Also, when the first factor (that there was copying) is proved by showing that the works are strikingly similar, this second factor is obviously met (if the works are strikingly similar, of course they are substantially similar).